Citation Nr: 1534359
Decision Date: 08/11/15 Archive Date: 08/20/15
DOCKET NO. 10-05 113 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to service connection for a right knee disability claimed as secondary to service-connected disabilities.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Christine C. Kung, Counsel
INTRODUCTION
The Veteran served on active duty from March 1966 to March 1968.
This matter comes on appeal before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO).
In a December 2014 decision, the Board reopened and denied service connection for a right knee disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court or CAVC), only insomuch as the Board denied service connection for a right knee disability on a secondary basis. The Veteran did not appeal the denial of service connection for a right knee disability on a direct basis. In July 2015, the Court vacated that Board's decision with respect to secondary service connection for a right knee disability and remanded the appeal to the Board for readjudication in compliance with a July 2015 Joint Motion for Partial Remand. The Board finds that a remand is necessary prior to adjudication of the appeal for service connection for a right knee disability, claimed as secondary to service-connected disabilities.
The issues of entitlement to service connection for a low back disability, an increased rating for a left knee disability, and a total disability rating based on individual unemployability were remanded by the Board in December 2014 and remain in remand status as it does not appear that development has been completed on these issues. The Board is, therefore, referring these issues to the Agency of Original Jurisdiction (AOJ) for appropriate action.
The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required.
REMAND
Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2014).
July 2015 Joint Motion for Partial Remand provides that the Board erred in not addressing two reasonably raised theories of entitlement to service connection. In that regard, a July 2014 VA examiner noted that factors that increase the risk of osteoarthritis included obesity and diabetes mellitus and that the Veteran had diabetes mellitus and a long history of being significantly overweight. The Joint Motion provides that the Board failed to consider whether the Veteran's right knee disability was caused or aggravated service-connected diabetes mellitus, or alternately, whether a service-connected left knee disability contributed to the Veteran's obesity, and whether this caused or aggravated the claimed right knee disability. The Board finds that a remand for a supplemental medical opinion is necessary to address these questions.
Accordingly, the case is REMANDED for the following action:
1. The AOJ should refer the case to the VA examiner who conducted the July 2014 VA examination (or a suitable substitute) for a supplemental medical opinion regarding secondary service connection for a right knee disability, claimed as due to diabetes mellitus or obesity secondary to service-connected disabilities. Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board's question without examination of the Veteran, such should be afforded the Veteran. The record should be made available for review in connection with this request.
The VA examiner(s) should offer the following opinions:
a). Is it at least as likely as not that a currently diagnosed right knee disability is caused by, a result of, or aggravated (permanently worsened in severity beyond the normal progress of the disease) by service-connected diabetes mellitus?
b). Is it at least as likely as not that a currently diagnosed right knee disability is caused by, a result of, or aggravated (permanently worsened in severity beyond the normal progress of the disease) by obesity, and if so,
c). Is it at least as likely as not that obesity is caused by, a result of, or aggravated (permanently worsened in severity beyond the normal progress of the disease) by a service-connected disability, to include a service-connected left knee disability and diabetes mellitus?
If the opinion is that there is aggravation, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. "Aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms.
The examiner should provide a rationale for his or her opinions with reference to the evidence of record. The VA examiner should specifically address findings from the July 2014 VA examination which identified diabetes mellitus and obesity as risk factors for osteoarthritis.
3. Thereafter, the AOJ should review the case again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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K. J. Alibrando
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).